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Republicans and Democrats agree: End mass incarceration

The election should put criminal justice reform at the top of the national agenda

Last week’s second Republican presidential debate demonstrated a remarkable shift in the politics of crime and punishment.

At the Ronald Reagan Presidential Library, a building named for one of the country’s most staunch advocates for the war on drugs, Former Florida Gov. Jeb Bush — the son of another drug war backer — stated on national television that he had smoked marijuana. He didn’t give any qualifications; he didn’t claim to have disliked it, done only it once or not inhaled (though he did apologize to his mother).

More noteworthy, Bush and other leading candidates for the Republican presidential nomination used the debate stage to call for criminal justice reform. Businesswoman Carly Fiorina was perhaps the most strident, noting that the United States has the highest incarceration rate in the world. Libertarian favorite Kentucky Sen. Rand Paul sharply but expectedly called for more rehabilitation and less incarceration for drug crimes, and other candidates, such as New Jersey Gov. Chris Christie and Bush, touted the benefits of drug courts and treatment as an alternative to incarceration. Christie called the war on drugs a “failure.” Implicit in this discussion was not only agreement that we have too many people in prison but also a competition for the most effective solution.

On the other side of the political spectrum, former Secretary of State Hillary Clinton, Vermont Sen. Bernie Sanders and former Maryland Gov. Martin O’Malley are beginning to unveil their criminal justice plans. Clinton called for an end to mass incarceration in her first speech as a candidate. Just last week, Sanders unveiled a plan to ban private prisons and reinstate federal parole.

This is an encouraging change from past presidential elections. At least since Richard Nixon’s 1968 campaign, politicians have tried to outdo one another as to who could be harder on crime and criminals. Perhaps most infamously, George H.W. Bush‘s Willie Horton ad helped secure his election by pushing the narrative that Massachusetts Gov. Michael Dukakis was to blame for the release of a violent criminal into society. The ad sealed into conventional wisdom that politicians must be tough on crime to win elections.

This logic wasn’t unique to conservatives. Bill Clinton promised harsh responses to crime during his 1992 campaign and delivered two years later with his crime bill, a piece of legislation that contributed to today’s mass incarceration problem by giving states billions of dollars to increase their prison populations and expanding federal three-strikes and mandatory minimum laws. By now, even Clinton has stated that the bill “made the [mass incarceration] problem worse.”

Mass incarceration is a pressing national issue and should be given the attention it deserves in this election.

Research has conclusively shown that mass incarceration is not necessary to keep down crime. While bipartisan agreement on this has grown in recent years, 2015 has seen a number of leading politicians speak out on the justice system’s failures. In April, 10 presidential candidates from across the political spectrum wrote essays arguing for an end to mass incarceration in a Brennan Center book, “Solutions: American Leaders Speak Out on Criminal Justice.” This summer President Barack Obama became the first president to visit a federal prison — an opportunity he used to urge justice reform — although there’s still more he could do even without Congress’ help, such as ending expanding clemency for nonviolent drug offenders.

We’re still a long way from implementing the large-scale reforms needed to meaningfully roll back mass incarceration. Much of what the candidates have offered so far — more body cameras, police training, drug courts, reforming civil asset forfeiture, legalized medical marijuana — won’t go nearly far enough. We need bigger, bolder solutions.

Treatment instead of incarceration for those with drug and mental health issues is a start. Laws should be changed to prioritize treatment in such cases, along with other alternatives to incarceration for nonviolent crimes. Probation, community service, electronic monitoring and psychiatric or medical treatment have all been proved to reduce recidivism while being less expensive than incarceration.

Also, the U.S. must reduce or eliminate overly harsh mandatory minimum sentences. Bipartisan bills to do so have been introduced in Congress, and presidential candidates should register their support. Of particular note, the Smarter Sentencing Act would roll back mandatory minimums, decreasing the federal prison population and setting an example for states. At a time when nearly half of state prisoners are behind bars for nonviolent crimes and half of federal prisoners are serving for drug crimes, it’s time for a broad reconsideration of whether long prison terms should be the punishment of first resort.

Foremost among any reforms should be eliminating financial incentives that fuel mass incarceration. As it stands, the way federal funds flow to states and cities encourages them to prioritize more arrests and convictions even if there is no public safety rationale. A bill that provides federal dollars to states to reduce their prison populations while keeping down crime would be valuable and could appeal to both conservatives and progressives. It would likely have a far broader impact than Sanders’ plan to close private prisons, which hold only 8 percent of the nation’s prisoners.

Mass incarceration is a pressing national issue and should be given the attention it deserves in this election. What is most important is that political leaders — including presidential candidates — shift from broad rhetorical support for change to public endorsement of clear policy solutions. And voters will have to hold them accountable for what they do in office.

Inimai Chettiar is the director of the justice program at the Brennan Center for Justice at NYU School of Law.

The views expressed in this article are the author's own and do not necessarily reflect Al Jazeera America's editorial policy.